People v. Milan

189 A.D.2d 627, 592 N.Y.S.2d 354, 1993 N.Y. App. Div. LEXIS 258

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 14, 1993
• Status: Published

Opinion

Judgment, Supreme Court, New York County (Carol Berkman, J.), rendered February 20, 1990, convicting defendant, upon his plea of guilty, of criminal use of a firearm in the first degree (Penal Law § 265.09 [1]), and sentencing him to an indeterminate term of imprisonment of from eight to sixteen years, unanimously modified, in the interest of justice, to reduce the sentence to six to twelve years, and otherwise affirmed.

On March 20, 1989, four uniformed police officers were fired upon by defendant as they responded to a 911 call reporting a domestic dispute at 562 West 189th Street, Apartment 2A. Defendant fled by jumping from a window, and was not apprehended until nearly one year later.

On December 13,1990, defendant pled guilty to criminal use of a firearm in the first degree in full satisfaction of the indictment stemming from the 1989 incident, and was promised a sentence of from eight to sixteen years. During his plea allocution, defendant stated that he had fired at the police officers entering his apartment in the mistaken belief that they were robbers.

Despite the serious nature of the charges, our examination of defendant’s background and the circumstances attending the incident leads us to conclude that the sentence of eight to sixteen years is excessive and warrants reduction in the interest of justice.

Defendant’s prior criminal history consists solely of a 1981 conviction for harassment, for which he was sentenced to a conditional discharge. Defendant had not previously been convicted of a felony, and the lengthy period between his arrests indicates that he is not a career criminal, and that the instant matter was an isolated incident. Significantly, no injuries resulted from defendant’s actions.

For all of these reasons we are persuaded that a sentence reduction to a term of six to twelve years will serve the interests of justice. Concur—Murphy, P. J., Carro, Rosenberger, Asch and Kassal, JJ.